Australian Competition and Consumer Commission v Dateline Imports Pty Ltd (No 2)

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Dateline Imports Pty Ltd (Dateline) and its director, Mr Taylor, alleging contraventions of sections 52(1), 53(a), and 53(c) of the Trade Practices Act 1974 (Cth). The proceedings concerned the marketing and sale of Keratin Complex, a hair-straightening product. The ACCC alleged that Dateline made misleading representations regarding the absence of formaldehyde and the percentage of natural keratin in the product. The court was required to decide on the utility of declaratory relief and the appropriate penalty under section 76E of the Trade Practices Act, considering factors such as the size and duration of the publication of the contravening advertisements, the deliberateness of the conduct, and the existence of an indemnity agreement between Dateline and its supplier.

The court found that one of the representations made by Dateline contravened section 52(1) of the Trade Practices Act. However, it found that the other representations did not contravene the Act. The court also found that Mr Taylor was knowingly concerned in the contravention regarding the Ireland ban but found no evidence of his involvement in the other contraventions. The court considered the principle of parity, which requires similar contraventions to incur similar penalties, while acknowledging the unique aspects of each case. The court also took into account the lack of frankness by Dateline in not initially disclosing the indemnity agreement, which reduced the benefit of their cooperation. The court compared the case to previous decisions and found that the penalties imposed in those cases were not directly applicable due to differences in the nature and extent of the contraventions.

The court exercised its discretion to make declaratory orders, stating that such orders should not be made automatically and should specify how the legislation was contravened. The court imposed a pecuniary penalty of $85,000 on Dateline for the contraventions related to the natural keratin representations. The ACCC was ordered to pay one-third of the respondents' costs of the proceeding. The court concluded that the penalty was appropriate given the circumstances of the case, including the non-deliberate nature of the contraventions and the lack of cooperation by Dateline.